Consent to Search Factors

Darren Chaker, notes if consent is obtained as a result of the illegal detention, the search was invalid. See United States v. Simms, 385 F.3d 1347, 1353 (11th Cir. 2004). As a general rule, the evidence gathered as a result of an unconstitutional stop must be suppressed. United States v.Chanthasouxat, 342 F.3d 1271, 1280 (11th Cir. 2003).
Consent by someone with authority is an established exception to the Fourth Amendment warrant requirement. See United States v.Forbes, 181 F.3d 1, 5 (1st Cir. 1999). For consent to be valid, the government must show by a preponderance of the evidence that the consenting party gave the consent freely and voluntarily. United States v. Jones, 523 F.3d 31, 37 (1st Cir. 2008). Determining whether a particular consent was voluntary is a question of fact, requiring an examination of the totality of the circumstances surrounding the interaction between the consenting party and the police. United States v. Perez-Montanez, 202 F.3d 434, 438 (1st Cir. 2000). An appellate court will reverse a finding that a defendant voluntarily consented only upon a showing of clear error, i.e., “a strong and unyielding belief that a mistake has been made.” Jones, 523 F.3d at 36.
Many factors are relevant to the consent inquiry, including
the consenting party’s age, education, experience and intelligence and
knowledge of the right to withhold consent. United States v. Reynolds, 646 F.3d
63, 72-73 (1st Cir. 2011). Also important is whether the police used
intimidation, deceit or trickery and whether the environment was coercive.
Vanvliet, 542 F.3d at 264.
Multiple factors go into deciding if consent is valid. For
example, the time of day, United States v. Laine, 270 F.3d 71, 75 (1st Cir.
2001) (recognizing time of day of request as relevant consideration). The
amount of officers/agent present when consent is asked for is relevant. How
many officers are present at the time consent is asked for and if police
already gained access to the interior of the residence. United States v.Chaney, 647 F.3d 401, 407 (1st Cir. 2011) (presence of five officers failed to
render consent involuntary). United States v. Winston, 444 F.3d 115, 122 (1st
Cir. 2006) (recognizing that in-home request for consent supports coercion
Last, additional factors are considered such as if the defendant was in jail. United
States v. Forbes, 181 F.3d 1, 5 (1st Cir. 1999) (that defendant was not
arrested or in custodial setting supported voluntariness finding). And the
length of the conversation when consent was subsequently asked for. United
States v. Bach, 388 F. App’x 2, 5 (1st Cir. 2010) [33]  (50 minutes between request and offer of consent did not undermine voluntariness finding).

© 2015 Darren Chaker. All Rights Reserved.

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Greetings - I am Darren Chaker. I litigated a cutting edge First Amendment case for 7 of its 10 year lifespan. Chaker v. Crogan, 428 F.3d 1215 C.A.9 (Cal.),2005, Cert. denied, 547 U.S. 1128, 126 S.Ct. 2023, invalidated a statute on First Amendment grounds and overruled the California Supreme Court‘s unanimous decision in People v. Stanistreet, 127 Cal.Rptr.2d 633. Soon after Chaker v. Crogan, it was also used to strike down Nevada's analogous statute forcing the legislature to rewrite the law and used as the backbone authority in Gibson v. City of Kirkland, 2009 WL 564703, *2+ (W.D.Wash. Mar 03, 2009). My case is a leading case on viewpoint discrimination. In a recent case, Chaker v. Crogan was used to vindicate people who filed a complaint against police. Those people were arrested and charged with a law Chaker v. Crogan invalidated! They sued for being arrested and charged with an unconstitutional statute, Penal Code 148.6. The federal court denied the City's motion to dismiss and the case settled. See Cuadra v. City of South San Francisco, 2010 WL 55875, *1+ (N.D.Cal. Jan 04, 2010) I love the fight and made cutting edge case law in the end. No doubt without the support of the ACLU (Ramona Ripston, Mark Rosenbaum, Peter Eliasberg, & Dan Tokaji) winning on appeal, and Joshua Rosenkranz assembling a small army of the best attorneys to defeat the California Attorney General's efforts to have the U.S. Supreme Court reverse the Ninth Circuit---this case would not have had a backbone to stand on. The case has been cited over 196 times as authority, and written about extensively. * Police Misconduct: Law and Litigation s 2:28, Denial of First Amendment rights (2009) * Smolla & Nimmer on Freedom of Speech s 3:11, Viewpoint discrimination--Cross-burning reprised: Commonwealth of Virginia v. Black--Heavy presumption against viewpoint discrimination (2010) * Smolla & Nimmer on Freedom of Speech s 10:22.50, Brandenburg v. Ohio: Intent and imminence standard--Bond and Watts decisions--"True threats" (2010) * CHAKER V. CROGAN, 5 Cardozo Pub. L. Pol'y & Ethics J. 425, 444+ (2007) My case is active, living and breathing—forever helping people who once felt oppressed.

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